Australian Immigration Daily News

Sometimes, when I’m looking at Austlii to prepare an article for this blog, the case that I am reading is so bizarre, outlandish, weird and downright crazy that I nearly fall out of my chair! 

And then I find myself thinking: “Did I really read what I just read? Are my eyes deceiving me? Did my wife sneak something (hallucinogenic?) into my sandwich? What was in the mushrooms that I was grilling for dinner last night!” 

Yep, sometimes you just can’t make this stuff up! And yep, sometimes life, as it plays out in migration cases, is “stranger than fiction”. 

So, while you really do have to wonder when (as reported on this site by my colleague Jerry Gomez) a judge of the Federal Circuit Court is throwing out an amazing and astonishing  99.21 % of all cases that come before him through judicial review applications (can it really be that such a huge percentage of the cases were “totally meritless” ?), at the same time it is hard not to think that there must be times when judges of the Court must have to have the patience of Job not to tear their wigs off and go screaming down the corridors of the courthouse!!! 

And yet, and yet, when I am done scraping myself off the floor and trying to get back into my chair without falling over again (no easy task for an American!) I still can find myself thinking: “Yeah, that case was sure off-the-wall, but I still learned something from reading it!” 

So it was with a case that showed up on Austlii this week, decided 29 February (is the moon out of alignment on Leap Day?”): Nirbhai v Minister for Immigration & Border Protection (2016) FCA 161. 

Consistent with what seems to be the “theme of the week” for the reported cases, this decision also involved a claim by an applicant for a partner visa that he was the victim of family violence. 

What exactly was the nature of the claimed violence? 

Well, as stated in the Notice of Appeal that was lodged with the Court, the claim was in the following terms: 

“My wife getting pregnant with some(one) (sic) else’s child while being in relationship with me in itself constitutes family violence.” 

Okay, before you stop reading right there, and think to yourself: “Michael, this case was a total no brainer! Of course this claim of family violence is ridiculous!” – stick with me, this case may “sound dumb” but there’s still a message and a lesson to be learned from it!!! 

For one thing, does a claim of “family violence” always have to be of a physical nature? Or can it be something else? 

The cases reviewed in Nirbhai tell us the answer: It can be something else! 

All right, maybe they didn’t say this right away!  In the 2003 case of Cakmak v Minister for immigration and Multicultural and Indigenous Affairs  FCAFC 257, the Full Court considered the definition of “domestic violence” that was then in force in the Migration Regulations and concluded that actions such as:

 belittling, lowering self-esteem, “emotional violence” and such behaviour as surrogates or synonyms for violence, is , we think to broaden the scope of the regulations beyond their words”.

 Hence, the Full Court took the view that domestic violence must involve: 

“violence” or the “threat of violence” involving the application, or threat of application, of force such that the alleged victim is caused to fear for, or be apprehensive about, his or her well-being or personal safety”. 

However, as soon as two years later, in 2005, the Full Court’s views on the matter seem to have “evolved”!   

In the case of Sok v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 56, the Court (composed of a different panel of judges than the one that had decided Cakmak) held that the term “domestic violence” should not be understood as being limited only to actual or threatened physical harm. In the Court’s view in that case, domestic violence could be considered to encompass “a wide range of behaviours” not involving actual or threatened harm. 

But what behaviours, exactly? Well, in Sok, Judge Hely departed from the other two judges on the panel and declared that the term “domestic violence” did not extend to “intimidatory threats made to the alleged victim”  because the actual text of the Regulation as it was then in force did not so provide. 

So what then happened? After the Sok case was decided, the Regulations were amended (see current Regulation 1.21) so that the term “family violence” is now defined to mean “conduct”, whether actual or threatened, which has the effect of causing the victim to fear reasonably, or to be reasonably apprehensive about, her or his own well-being or safety. 

In other words, in the aftermath of the amendments to Regulation 1.21, conduct short of actual or threatened physical violence, for example, “intimidatory threats”  can indeed qualify as family violence. 

Ok – let’s get back to the case at hand then, Nirbhai:  what did the court decide in this case? 

Did the fact that the applicant’s wife had become pregnant with another man while still in a relationship with him, and the fact that the applicant had then suffered depression following his separation form his wife, enough? 

No – you win! It was, in the end, pretty much of a no-brainer!  There was never any suggestion put forward that the applicant’s wife had engaged in conduct which had caused him to fear for, or be apprehensive about his safety. 

So, like a proverbial “lead balloon”, the applicant’s case before the Court “crashed and burned”! 

Interestingly, the court in Nirbhai said that the MRT did the “right thing” by not throwing the case out summarily, and that it was indeed “obliged to consider any claim…arising reasonably from the materials placed before it”. 

At least we can all agree that this case was “different” from the routine! 

And hopefully there was a valuable lesson here, as well!!!!!!!!!!!! 

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837